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Thursday, February 21, 2013

Documents Related To AG's Raid At VictoryLand Prove Luther Strange Trampled All Over The Law


Raid at VictoryLand
Attorney General Luther Strange makes the extraordinary assertion in documents related to this week's VictoryLand raid that an Alabama circuit judge has no discretion in the issuance of a search warrant, as long as the application is presented in the proper form.

If the application adheres to certain technical requirements, Strange claims, a circuit judge must approve the search warrant. That was the attorney general's primary argument in seeking a writ of mandamus that would force a Macon County judge to approve the warrant. The Alabama Supreme Court apparently agreed because it issued the writ, ordering Judge Thomas Young to sign off on the search.

The high court unsealed documents in the case yesterday, and the Montgomery Advertiser posted them to its Web site last night. A review of the documents shows that, as we suggested in a post yesterday, Strange and the Alabama Supreme Court trampled legal procedure and precedent in their haste to shut down VictoryLand's electronic-bingo operation.

Most stunning was Strange's claim that a circuit judge essentially must play the role of rubber stamp when law-enforcement officials present him with a search-warrant application that meets minimum technical requirements. In such a situation, Strange suggests, a judge has no authority to determine if the contents of the application show "probable cause" to believe a crime has been committed.

In Luther Strange's world, a judge is supposed to sign any form that law enforcement places before him--as long as all the boxes are properly filled in. Strange must not be familiar with the Fourth Amendment to the U.S. Constitution, which guards against searches and seizures that are not judicially sanctioned and supported by probable cause.

With the apparent intention of proving that the U.S. Constitution does not apply in Alabama, Strange turns in his petition to Rule 3.9 of the Alabama Rules of Criminal Procedure and to Code of Alabama 15-5-5. He claims that both prove Judge Young had a mandatory duty to approve the search warrant at  VictoryLand. On page 13 of his petition for a writ of mandamus, Strange titles the key section "The trial court has an imperative duty to issue the warrant, and the State has a clear right to the issuance of the warrant."

Unfortunately for the attorney general, his citations to law do not say what he wants them to say. In fact, upon close reading, Strange's own petition undercuts his argument. The two sections of Alabama law that Strange cites essentially say the same thing--and the heart of it is this, taken from the rules of criminal procedure:

If the judge or magistrate is satisfied that probable cause to believe that grounds for the application exists, the judge or magistrate, in the case of a warrant issued on affidavit, shall issue a warrant naming or describing the person and particularly describing the property and the place to be searched.

Strange claims that use of the word "shall" means that issuance of the warrant is mandatory. But the clear language of the full rule shows a warrant "shall" issue only when a judge or magistrate is "satisfied that probable cause . . . exists."

Reaching into the way-back machine, Strange pulls out a case from 1899--Benners v. State, 26 So. 942 (Ala., 1899)--for the proposition that a judge has a duty to approve a warrant application that is "regular in form, and full in substance."

Benners is so old that we can't find it on the Web, but Strange makes no showing in his petition that the ancient state case precludes a judge from fulfilling his Fourth Amendment duty to make a determination on probable cause. Even Strange seems to acknowledge this when he writes:

As the Benners decision shows, it has long been the law of this State that when a circuit court is confronted with an affidavit from the State establishing probable cause to issue a warrant, the court has no discretion to decline to issue the warrant.

This is a poor attempt at legal hocus pocus. Strange claims, on the one hand, that a judge "has no discretion to decline to issue the warrant." But he admits that comes only after the judge is "confronted with an affidavit from the State establishing probable cause."

Despite much huffing and puffing, Strange concedes Judge Young had the discretion to determine whether the attorney general's office had met the requirements for probable cause--and the judge decided in the negative.

In a letter responding to Strange's petition, Judge Young says he denied the search warrant application for two primary reasons:

* Another law-enforcement officer, the sheriff of Macon County, had found the machines to be legal;

* The attorney general, if convinced that the bingo machines were illegal, could exercise his "plain view" authority to take action against VictoryLand.

The Petitioner, in essence, is asking this Court to sign an Order declaring these machines to be illegal, when there has been no such decision on this issue by any Court. If these machines were of such an illegal nature, as cited in the extensive briefs of the Attorney General, then why does the Attorney General need a warrant? This business is for public invitees and a search warrant would not be required if these machines were in plain sight and illegal.

Judge Young concludes with this big-picture statement:

The Fourth Amendment is sacred and should not be the subject of political agendas of Governors, Task Force(s), Attorney Generals or multi-million dollar industries. No Judge would issue a search warrant in any case under the aforementioned circumstances because of lack of probable cause establishing illegal activity nor should said Judges be ordered to do so.

Finally, Young made his feelings clear in a handwritten note at the bottom of the search warrant he was forced to approve. The warrant can be viewed at the end of this post, but here is how Young's note reads:

Based on the conflict in information known to this court at this time, I do not believe that this application for a search warrant provides sufficient probable cause. One month ago, based on this information, I declined to issue the warrant and the Criminal Court of Appeals supported the decision when they denied the Attorney General's first writ of mandamus, by unanimous decision. No new information has been provided to this date. The Supreme Court has now issued to this Court a Writ of Mandamus requiring the Court to sign the same warrant, despite this Court's opinion that it is improper according to the law. This Court will, as always, follow the mandates of the Supreme Court, although, it does so with the greatest judicial reluctance.

Documents in the VictoryLand matter make it clear that Strange disagreed with Judge Young's ruling--and the Alabama Court of Criminal Appeals' ruling that unanimously upheld it. Strange is entitled to disagree and seek redress. But his contention that Young did not have discretion to make the ruling is preposterous.

That the Alabama Supreme Court apparently agreed with such a flagrantly unconstitutional notion should frighten everyone living within the borders of this state.


71 comments:

Anonymous said...

I am frightened. We are now living in a police state.

Cheryl said...

Love your analysis, LS. We badly need more voices like yours in Alabama.

Anonymous said...

It's mandatory for a judge to approve an application for search warrant when Luther's thugs present it to him? Now that's a novel legal theory.

DTrain said...

OK, we now know the Fourth Amendment right to protection from unlawful search and seizure no longer applies in Bob Riley's Alabama . . . I mean, Karl Rove's Alabama . . . I mean, Luther Strange's Alabama.

What other constitutional rights do we forfeit by living within the borders of RileyVille?

Leonard said...

What happened to Luther's protest against the VictoryLand liquor license? Was the liquor license approved? Is that why he conducted the raid?

If Luther doesn't get his way, he raids your business? Is that how it works?

Bob O. said...

Thanks for the link to Judge Thomas Young's letter in response to the Luther Strange petition for mandamus. Judge Thomas' letter is well stated and should be required reading for all Alabamians. It should be taught and discussed in state schools, while we still have a shred of democracy left.

Anonymous said...

DTrain--

I think it's Jack Abramoff's Alabama and Michael Scanlon's Alabama. The corrupt system they devised still is in play, despite their prison terms. How much cash are various tribes sending to Team Riley in order to drag Luther around on a leash?

Anonymous said...

Speaking of corruption . . .dig this from The Graftmaster himself, Mike Hubbard:




http://www.alreporter.com/al-politics/political-news/state-news/4241-nonprofit-founder-claims-bob-riley-directed-donations-to-mike-hubbard-owned-businesses.html



Anonymous said...

Where did Big Luther get his law degree? Wherever it is, someone needs to shut it down.

legalschnauzer said...

Anon at 7:53--

Thanks for sharing. More good work from Bill Britt. And you've hit on a good idea. Mike Hubbard's business should become GraftMaster Printing.

State Trooper Taylor said...

The Fourth Amendment is over-rated. Luther told me so.

legalschnauzer said...

Wow, @7:53, I just read your link to the Bill Britt article at Alabama Political Reporter.

Are A. Eric Johnston and Citizens for a Better Alabama turning against Bob Riley and Mike Hubbard?

That could be major news. What's going on?

Anonymous said...

Democrats, and other Alabamians who care about the rule of law, should encourage Judge Young to run for AL Supreme Court.

Anonymous said...

Bob O.--

I like your idea. But what if Luther shuts down the schools?

Anonymous said...

I am sure there is a lot of things going on behind the scenes that we are unaware of but I am surprised that there is not more statements coming from the Milton McGregor Camp. Milton and Joe Espy really need to take this to the public and national media.

Anonymous said...

Schnauzer I think Eric Johnston fears being hit by the IRS for the $1 million he supposedly ran through Citizens for a Better Alabama. If that is shown to be partisan money (which it unquestionably was) as the sole member of CBA HE would be solely liable for hundreds of thousands in back taxes. As Johnston - according to him - never even HANDLED any of that money (it all went to Hubbard and Rob Riley)Riley and Hubbard used him and he ain't happy.

legalschnauzer said...

Anon at 8:23--

I think you just shined major light on this. Thank you.

Does it sound like Riley and Hubbard are conspiring to stick Johnston with a big tax bill? Did Johnston get a financial knife in the back? That's why he's squealing?

Anonymous said...

Tell me Luther/Where are we going this time?/Is it the fifties?/Or 1899?

Coming soon to a theater near you . . .LUTHER STRANGE in "Back to the Future IV!"

Thrill to Luther going back to the Alabama of the 1950s and overturning Brown v. Board of Education! Then watch as Luther goes to the swingin' '70s and overturns Roe v. Wade! Also starring Jessica Medeiros Garrison!

Anonymous said...

Did Jessica Medeiros Garrison do the legal research for Luther's petition--in between pole dances?

Spasmoda said...

Luther had to go to 1899 to find a case that supports his cause? And it apparently doesn't even support his cause, assuming it doesn't override the Fourth Amendment?

Sounds like Big Luther had one hell of a case. No wonder the Court of Criminal Appeals turned him down flat.

Anonymous said...

LS: did you hear Kyle Whitmire's comments on Victoryland yesterday on WBHM 90.3 ?

Anonymous said...

Isn't this pretty much the same Supreme Court that gave us the infamous ExxonMobil decision, screwing the state out of a $3 billion fraud judgment?

Do Alabamians enjoy taking it up the a-hole time and again? Is that why we keep electing corporate hacks to the state's top courts?

Anonymous said...

You know what comes to mind on this to me? Don Seigelman and Richard Scrushy. The courts found Richard NOT guilty and even if he was that should have been the end of it because a jury said NO NOT GUILTY.. But they kept on and on until they trumped up something on him to get him in prison to serve some time and had to use Don Siegelman in the meantime. Milton McGreggor and the others found NOT guilty and you sit back and watch. They will go after every one of them. It is a shame in our Justice system when you are found NOT GUILTY they can trump up something to get you to serve some time. It is like THEY NEVER GIVE UP. Yesterday I had to go somewhere and the entire road looked like bombs had been dropped with huge holes in the road. I thought to myself if we could have a lottery and other things states have we may have better roads and our school system not in such bad trouble as it is.. But then of course all the lottery money would probably go to build stadiums for Alabama's GOD football.. I still have not figured out how Bham thinks people will show up in masses to the baseball games downtown. While you are their watching the game some thug will be breaking in your car or you will get mugged going to the game. Seems like they could have used that money more wisely but Bham has a history for not so smart leaders. This has always been a state known for its dirty politics. Seems like things never change. I think there is no hope for this state.

legalschnauzer said...

Anon at 8:41--

Actually, it was a $3.6-billion fraud judgment. And you ask great questions.

Anonymous said...

Mr. Peabody is suing Luther over unauthorized use of the Wayback Machine

Anonymous said...

How's this for a campaign slogan:

"Do you live in Alabama and enjoy being on the receiving end of anal sex? Then vote Republican for Alabama Supreme Court! They will pleasure you over and over!"

How will all of the church-going heteros react to that?

legalschnauzer said...

Anon at 8:37--

No, I didn't hear the Whitmire comments on WBHM. Can you summarize? Is there a link to archives where folks can listen?

Anonymous said...

For his next trick, Luther will get the Second Amendment overturned in Alabama.

Watch out, wingers, Big Luther is a comin' for your guns!

Anonymous said...

So I see Chief Justice Roy Moore voted for Luther's petition.

Must be a new commandment:

"Thou shalt kiss Bob Riley's ass whenever asked."

TLR said...

I hear Luther had to call out Pony Express to haul in that 1899 case.

Anonymous said...

Judge Young knows bullshit when he's wading in it:

"If these machines were of such an illegal nature, as cited in the extensive briefs of the Attorney General, then why does the Attorney General need a warrant? This business is for public invitees and a search warrant would not be required if these machines were in plain sight and illegal."

Anonymous said...

The Schnauzer has spoken again . . . and again, it is good.

Anonymous said...

Mike Hubbard diverts millions into his own pocket and the AG does nothing. Greenetrack operates unperturbed. But a guy they spent millions of taxpayer dollars to unsucessfully prosecute last year is Public Enemy Numero Uno.

Anonymous said...

Looks like Eric Johnston jumped in bed with snakes and now is surprised to find he's been bitten in the ass.

Welcome to the real world, Eric!

Anonymous said...

I hear ABC approved the VictoryLand liquor license. Milton is allowed to let cocktail waitresses serve drinks to state troopers.

Lonesome Dove said...

I'm disappointed MM didn't have enough security on hand to fight off the troopers. I wanted to see a "Remember the Alamo!" kind of scene.

Anonymous said...

Me no comprende.

Luther Strange sounds confident of his position in legal documents. So why again did he fail to appear at the ABC hearing, which he requested and had rescheduled for his convenience?

Was Luther afraid he might have to answer questions under oath from Joe Espy?

But Big Luther, you sound so confident when no one questions you. What gives?

Anonymous said...

Judge Young is a Birmingham school of law grad and is probably not welcome inside the Crimson JD mafia country club. He should be aware that any document placed in front of him by the crimson ruling elite should be rubber stamped, immediately.

Kudos to Judge Young for following the law. We need more judges and attorneys like him. His comments on the search warrant are fantastic. What a rebuff to those scoundrels.

Anonymous said...

I think Luther does not know what a "slot machine' is. According to head aide Jessica Medeiros Garrison, the AG sometimes "has trouble finding the slot."

Anonymous said...

I think someone should do a new painting of Custer's Last Stand with Milton McGregor as Custer surrounded by Poarch Creek Indians led by Chief Crazy Whore(Luther Strange)

Anonymous said...

Oh - and Chief Sit-in Bullshit (Bob Riley) could be in there too

Anonymous said...

I'm so happy to see Luther Strange showing his true crooked colors! I wonder how deep in the corruption he is beyond this? I know that he helps criminal family law judges cover their asses of wrong doing and shuts down investigations frivolously once they've already begun.

Anonymous said...

The Bradley Arant whores who orchestrated the cheat job on Sherry Rollins and her daughters in Shelby County are the same ones who pull Luther's chain. The Rollins story and the VictoryLand story intersect. Keep sniffing, Schnauzer!

Anonymous said...

And now for the big question:

Was Luther wearing briefs when Jessica briefed him on the "ins and outs" of mandamus?

Bart said...

Why didn't Jesus warn Eric Johnston about getting in bed with snakes?

Anonymous said...

I thought Judge Roy Moore was a man of God, a man of the people. How does he explain jumping in bed with the Riley whores? Is the "Ten Commandments" judge bought and sold like everyone else?

Anonymous said...

Can I get an amen for Judge Thomas Young?


"The Fourth Amendment is sacred and should not be the subject of political agendas of Governors, Task Force(s), Attorney Generals or multi-million dollar industries."

Anonymous said...

I heard the Kyle Whitmire interview on WBHM, and he did not go into anything like the legal analysis you get here.

It was a decent five-minute interview. He stated, correctly I think, that the Poarch Creek lawsuit was for political cover and almost certainly will be shifted to federal court or dismissed altogether.

That's the main thing I took from it.

Gerry with a G said...

That's interesting information about the "plain view" doctrine of law enforcement. I had never heard that term before. It's hard to see why the AG's office needs all of the cloak and dagger stuff--the motion to seal, etc.--when the machines are right out in the open, at a business that is open to the public.

Anonymous said...

Would McGregor have grounds for an "abuse of process" lawsuit? Isn't that where someone initiates legal process for an unlawful purpose, with an improper motive?

That sounds like what is going on here.

Anonymous said...

Looks like Mr. Chief Justice Moore found that old time Riley religion real fast.

The guy couldn't even stay pure for a full month.

legalschnauzer said...

Anon at 10:41--

You ask an intriguing question. Luther, I feel certain, would try to shield himself in immunity. Might be a way around that. If so, I think Joe Espy could find it. Could others be vulnerable to litigation? I'm not sure about that, but it's definitely worth pondering.

Anonymous said...

Big trouble for Great White Father (Bob Riley). And speaking of white fathers, doesn't Chief Crazy Whore (Luther Strange) worry about a possible reaction from his squaw if his head aide has a papoose? He better smoke the peace pipe with her soon or she'll take his teepee.

legalschnauzer said...

I must say that Legal Schnauzer readers are a hoot, and that makes me proud. Nothing brings out the raw comedy--and some of it gets pretty raw--like a post on Luther Strange.

Can't stop laughing at some of these comments. Love 'em.

Anonymous said...

If you don't like our 3rd reich get out Zeig Heil Luther Strange...! Lol J/K but isn't that what it feels like... Next the state troopers will be replaced by Luther's gestapo...

Anonymous said...

Nick Saban just signed another class of football studs, so why should we care if our constitutional rights are being ripped asunder. Roll Tide!

Anonymous said...

I see two possible explanations for these "Strange actions":

(1) Somebody (various tribes?) is funneling massive amounts of money to Team Riley in order to enhance bottom lines at Indian gaming facilities;

(2) Somebody (various tribes?) has an unreal amount of dirt on Team Riley and is various associates, including folks named Rove, Abramoff, and Scanlon (Bush?)--and the "dirt holders" are threatening to release information if they do not get their way.

In short, it's either bribery or blackmail--or some combination of both.

I can think of no other explanation.

Coyote Lane said...

Don't know your history in Alabama, Legal Schnauzer and sorry but don't have time to do the legal snoop dog, IN OREGON STATE, ALABAMA’S SIAMESE TWIN OF CORRUPTION, here's uncovering of what's happening according to a very fine attorney in Oregon: A REPUBLICAN ERA, Started in 1971, THE American Inns Of Court, State Justice Institute, National Center for State Courts, Federalist Society, Burger Court ..

... National Center for State Courts -- Formed in 1971, by Chief Justice Warren Burger. Its mission is to improve judicial administration in the courts of the U.S.; The Federalist Society -- Formed in 1982, its mission is to reform the current legal order; American Inns of Court -- Formed in 1983 by Chief Justice Warren Burger. Its mission is to foster excellence in professionalism, ethics, civility and legal skills; State Justice Institute -- Formed in 1984, Its mission is to ensure access to a fair and effective justice system. It serves to finance the activities of the National Center for State Courts...

.. In 2009, Chief Justice Paul De Muniz, Supreme Court of Oregon convened an august group of twenty two (22) sophisticates in the law to decide the state’s strategic plan for their judicial department for the next four years – Curiously, he included only one lawyer .. to formulate the Oregon Supreme Court’s “PLAN” for the next four years .... back to 1999 .. State Justice Institute .... WACO .. explosion .. Oklahoma City .. project .. assigned .. State Justice Institute .. determine what to do with unruly, unrepresented citizens (citizens appearing in court w/o lawyer(s) in our court system – assignment product – an Anti-Government Movement Guidebook

... An Anti-Government Guidebook?? .. I [Lauren J. Paulson] .. read it carefully .. So has Julie Weinstein .. and .. her opinion .. in .. preceding article.... cynic .. I am .. a guide to judges as ‘how to’ avoid giving citizens due process ... A lawyer/legal system hater could see these National Center for State Court's instructions to judges, as bald instructions to not afford the unrepresented citizens the rule of law in their courtroom....

... In several places, the Anti-Government Guide recommends that a judge just ignore what the citizen has just said and recommends that the judge just say he is moving on ...... without addressing the issue being set forth by the unwashed ... the weird part ... back to where I started ... The 1999 State Justice Institute Anti-Government Guide contains the EXACT five goals ... set forth by the Oregon Supreme Court thirteen years later in the latter’s 2009-2013 Oregon Judicial Department Strategic Plan as follows:

see BULLETINS FROM ALOHA, LAUREN J. PAULSON and cross posted at www.theartof12.blogspot.com w/ LEGAL INVESTIGATION in how did the “Non-Judicial Foreclosures” get to usurp the U.S. Constitution’s Articles, IV, V, VI, and what are these criminals in charge of destroying our reality not doing as though MAFIA global.

Anonymous said...

10:51 AM, absolutely cracks me up

so many times i actually come here - no offense to your brilliance LS - to read the comments and really get inspired.

LS your blog does have some of the highest humor and according to the Chinese this is the true measure of higher intelligence, the sophisticated sense of humor.

Luther Strange, the name begs to be religiously embraced intimately in a peduncle.

Anonymous said...

AND OUR GOVENER IS DOING WHAT ABOUT THIS MISS USE OF POWER



legalschnauzer said...

We have a governor? What's his name? I've forgotten.

Anonymous said...

LS we can't be sure of the Governor's name - he may have changed it again. Maybe he made "Governor" part of his legal name . . . .

Anonymous said...

Does he just sit up all night long and read old laws?

Anonymous said...

http://en.wikipedia.org/wiki/Mr._Burns here is our Governor. x

Anonymous said...

Let's get on the Strange/Jessica affair pronto!

Anonymous said...

I have no doubt that if you need a Writ of Man Dumbass, Luther Strange is your go-to guy.

Anonymous said...

My apologies to Chief Crazy Whore, he is in fact a product of Tulane not UA. However he seems to be fully accepted by the crimson tribe.

Anonymous said...

Out of all the lazy stupid things our governor has pulled so far I must say I'm most bothered by him making Mediacom remove Dora the Explorer off on demand. The rest I expected but messing with my kid? That crossed a line! He reminds me even more so now of the creepy old man from Poltergeist.

e.a.f. said...

sounds all very strange. the man needs help from a good shrink, well maybe a trip back to law school. Obviously American justice has taken a step back wards, somewhere like ya, maybe like Iraq, syria, China, Russia, Afghanistan. Yes, these would be good places for Luther Strange.

it looks like Luther has joined the taliban, the southern form of it. The guy obviously doesn't know how to read because if he didn't he would know what he is doing is in violation of the basic legal game rules in a free and democratic country. Right luther land just left the u.S.A.

jeffrey spruill said...

LS:

If the state of Alabama is allowed to use Rule 3.9 of the Alabama Rules of Criminal Procedure & Code of Alabama 15-5-5 to supersede Fourth Amendment to the U.S. Constitution would not this set a dangerous precendent for the whole country?

legalschnauzer said...

Jeff:

Yes, that would be the case if those sections of law said what Luther Strange claims they say. But they don't; they clearly state that a judge has the obligation to make a determination regarding probable cause. If he determines that probable cause exists, then he "shall" issue the warrant. But it's dependent on the judge's discretion. Alabama law is in line with the U.S. constitution. It's Luther's interpretation of Alabama law that is out of whack.